P. S. Seymour-Heath v. George T. Goggin, Trustee, Etc.

389 F.2d 327 P. S. SEYMOUR-HEATH, Appellant, v. George T. GOGGIN, Trustee, etc., Appellee. No. 21868. United States Court of Appeals Ninth Circuit. January 10, 1968. Morris Lavine (argued), Los Angeles, Cal., for appellant. Hubert Laugharn (argued), of Craig, Weller & Laugharn, Los Angeles, Cal., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: 1 Appellee Goggin is the trustee in bankruptcy for four bankrupt corporations, Trans-Pacific Corporation, Columbia Stamping and Manufacturing Corporation, New-Bart Stamping and Manufacturing Company, and Communications Equipment Corporation. These bankruptcies have been pending since 1946. The record indicates that appellant, who will be referred to for convenience as "Heath" owned or controlled all of them, Trans-Pacific being a holding company for the others. 2 In or before 1959, a controversy existed as to whether Heath or the trustee was entitled to the stock of another corporation, American Pumice Company. The trustee claimed that Trans-Pacific owned it. The principal asset of American Pumice was property which the Government was then seeking to acquire through condemnation proceedings. The…

Appellee Goggin is the trustee in bankruptcy for four bankrupt corporations, Trans-Pacific Corporation, Columbia Stamping and Manufacturing Corporation, New-Bart Stamping and Manufacturing Company, and Communications Equipment Corporation. These bankruptcies have been pending since 1946. The record indicates that appellant, who will be referred to for convenience as “Heath” owned or controlled all of them, Trans-Pacific being a holding company for the others.

In or before 1959, a controversy existed as to whether Heath or the trustee was entitled to the stock of another corporation, American Pumice Company. The trustee claimed that Trans-Pacific owned it. The principal asset of American Pumice was property which the Government was then seeking to acquire through condemnation proceedings. The controversy as to the ownership in the stock in American Pumice, as well as certain others not here material, was settled by a compromise which was approved by the referee in bankruptcy, in all four estates, by an order dated October 20, 1959. The material parts of this order are set out in the margin. 1 The present *329 controversy arises from this order, which, of course, is long since…

(dissenting):

I dissent. The interpretation of the October 20, 1959 compromise, as made by the referee and followed by the district court, is reasonable in view of the various rights waived therein and the general tenor of the instrument.

The trustee thought it best there be no appeal. Seymour-Heath could have appealed, had he desired, and been able, to post a bond. This he did not do. The July 30, 1965 order is final. Any appeal by American Pumice has lapsed. Thus, the question here involves the compromise of a judgment, not a cause of action. The October 20, 1959 compromise refers, in paragraphs 1(g) to Heath’s right to approve any compromise “of the condemnation action,” not to approve any compromise, or the compromise of any judgment, after trial. It may be presumed that the parties anticipated an ultimate solution by some judgment in the condemnation proceedings.

The parties did not state that Seymour-Heath had a right to veto any compromise of a judgment. The parties anticipated that if Seymour-Heath was not satisfied with the judgment obtained, he could force an appeal, but required the posting of a bond. This he never accomplished.

While it is true that the proposed…